NLRB’s top lawyer still feels fallout from Boeing, union case

Originally published February 19, 2012 at 8:00 pm
Updated February 19, 2012 at 10:46 pm

NLRB’s acting general counsel Lafe Solomon

Thanks to the controversial case, Lafe Solomon, whom President Obama named the NLRB's acting general counsel in June 2010, has given up any hope of being confirmed by the Senate for the permanent title.

WASHINGTON — Last year, just before the National Labor Relations Board accused Boeing of illegally punishing strike-prone Puget Sound-area Machinists by building a new 787 assembly plant in South Carolina, that state’s senior senator privately warned the agency’s top lawyer of “nasty, very very nasty” consequences if he didn’t yank the complaint.

Otherwise, Sen. Lindsey Graham pledged, he would go “full guns ablazing,” according to notes taken at the time by Lafe Solomon, the NLRB’s acting general counsel.

Nine days later, in April 2011, Solomon greenlighted the unfair-labor practice case against Boeing. Graham — along with many of his fellow conservatives — was furious.

Republicans in South Carolina and in Congress accused Solomon of colluding with the Machinists union and the White House to undermine employers’ rights. Mitt Romney slammed the NLRB as a “rogue agency.”

Solomon was compelled to testify in a congressional hearing in North Carolina under threat of subpoena. He was called a job killer and faced a thinly veiled specter of disbarment after he balked at turning over documents to House Republican investigators.

Solomon, a genial Arkansas native, found himself in the center of a maelstrom he did not entirely expect and which continues to dog his agency even now — more than two months after Boeing and the Machinists forged new labor peace with a four-year contract extension.

Solomon had anticipated that the case against Boeing might be explosive, particularly given the NLRB’s proposed remedy that the jetliner work be ordered back to Washington state from North Charleston, S.C.

Still, the resulting political furor caught him off guard.

“I never could have imagined the fallout,” he said recently in one of his first extended interviews on the topic. Hearing Graham’s warning “is not the same thing as experiencing it.”

Overnight, Solomon came to personify Republicans’ assertions that the NLRB was a pro-union activist agency.

Rep. Darrell Issa of California, the Republican chairman of the House Committee on Oversight and Government Reform, subpoenaed thousands of internal NLRB emails and documents related to the Boeing case as part of his panel’s investigation.

In December, Solomon dropped the Boeing complaint after the Machinists ratified their new contract. The accord includes wage and pension increases and $5,000 signing bonuses, and guarantees final assembly of the upcoming 737 MAX in Renton.

Yet Issa is pushing on. Solomon, whom President Obama named NLRB’s acting general counsel in June 2010, has given up any hope of being confirmed by the Senate for the permanent title. (He can remain as acting counsel until a permanent appointee is confirmed by the Senate.)

Solomon wonders if any future appointees to the board could muster a filibuster-proof 60 votes. And he worries that NLRB’s budget could fall victim to political enmity.

Agency veteran

Solomon, 62, is a career NLRB attorney. With an economics degree from Brown University, he joined the agency in 1972 as a field examiner in Seattle. That was just after the Boeing Bust of 1971. Solomon paid a little more than $100 a month for a furnished one-bedroom apartment in Madison Park.

“With a fireplace and a balcony, right on Lake Washington,” Solomon recalled.

As he roved the five-state Seattle region to check workers’ claims of wrongful termination and discrimination — many linked to mining and manufacturing jobs — Solomon became convinced a power imbalance sometimes exists between employees and employers.

“You’d go to Kalispell, Montana, say, and check into a motel. People would start knocking on your door and say they heard the labor board was in town,” he said.

That stint pushed Solomon into law school at Tulane University; he wanted to prosecute, not just investigate, unfair labor practices.

He arrived at NLRB’s Washington, D.C., headquarters in fall 1976. The independent federal agency is responsible for ensuring workers’ right to unionize and to engage in strikes and other protected activities. It also protects employers from unfair boycotts or picketing.

The NLRB’s general counsel operates independently of the agency’s five-member board, which is appointed by the president.

The general counsel files charges, which are heard by an administrative-law judge. The judge’s ruling can be appealed to the board. The board’s decisions can set precedents in enforcing the National Labor Relations Act.

In March 2010, the International Association of Machinists and Aerospace Workers District 751 filed a complaint with the NLRB alleging that Boeing built its second 787 jetliner assembly line in South Carolina to get back at the union for past strikes and to discourage future ones. The union’s seventh and most recent strike ended after 57 days in November 2008.

The NLRB’s Seattle regional office found merit in the union’s claims and recommended filing a complaint. Among the evidence cited was a videotaped newspaper interview by Boeing Commercial Airplanes CEO Jim Albaugh, who said the overriding factor behind the move was not high wages or poor business climate, but “work stoppage, you know, every three years.”

In fall 2010, Solomon took the unusual step of calling Boeing and Machinists officials to Washington, D.C., so he could hear their arguments. Solomon said he did so because of the “enormity” of the stakes. Boeing had spent $750 million to build the North Charleston plant, an investment the company and its supporters feared could be undone by the complaint.

Solomon said he tried for three months to broker a settlement before filing the complaint, but failed.

Boeing denied each and every allegation. It argued economic factors and geographic diversity largely steered the relocation. It also said Machinists in Everett had suffered no job losses because the second 787 final-assembly line never existed there, and thus could not have been moved or transferred, as the NLRB alleged.

Companies can legitimately move or close operations as they see fit. But it’s illegal to do so in retaliation for past strikes or to avert future ones.

“Companies can make rational economic decisions that can be in violation of the National Labor Relations Act,” Solomon said.

Partisan flash point

Solomon’s decision roiled an agency already caught in political cross hairs. Threats by GOP senators to block appointees had kept President Obama from filling vacancies on the NLRB board. Until January, the last time the board was at a full five members was August 2010.

Ross Eisenbrey, vice president of the Economic Policy Institute, a left-leaning Washington, D.C., think tank, said some NLRB board members as well as previous general counsels have been highly political. But Eisenbrey said Solomon has been less partisan than most.

The NLRB gave its critics further ammunition when internal agency emails revealed staff members mocking the Boeing case.

The emails, obtained by a conservative watchdog group under the Freedom of Information Act, included this note from Solomon to the outgoing chairwoman of the board: “You go to geneva and I get a job with airbus. We screwed up the us economy and now we can tackle Europe.”

Solomon defended the exchanges as natural gallows humor from professionals who felt unjustly under siege.